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Income‑tax Case No. 696 of 1972, decided on the October 1983.

‑‑‑Ss.8(1) & 7‑‑Sales Tax Rules, r.16‑A‑‑Notification issued under S.7‑‑Sale of goods to exporters holding exporter's licence under S.8(1)‑‑Assessee not charging sales tax from such exporters on obtaining certificate from them that they were exporting goods outside Pakistan as required by r. 16‑A, of Sales Tax Rules‑‑Assessee claiming exemption from such tax in respect of such sales on basis of Notification issued under S.7 of Act‑‑Department refusing exemption on ground that no convincing evidence was furnished by assessee that such goods were actually delivered outside Pakistan‑‑Fact that goods were sold to exporters, held; could not lead to presumption that they had been actually delivered outside Pakistan‑‑Notification under which exemption was claimed clearly provided. that not only goods should be sold for delivery outside Pakistan but that they were actually delivered outside Pakistan‑‑Entire emphasis of notification was not merely on sale to exporters but on delivery outside Pakistan.

Hussain Industries Ltd. v. Commissioner of Sales Tax, Karachi (West) P L D 1983 Kar 295 and Adam Ltd. v. Commissioner of Income‑tax (1977) 16 Taxation 97 ref.

Ali Athar for Appellant.

Waheed Farooqui for Respondent.

Date of hearing: 11th October 1983.

‑ The applicant assessee has filed application under section 17(1) of the Sales Tax Act, 1951 raising the following questions:‑

(1) Whether in the facts and circumstances of the case the Tribunal was right in holding that sales made to exporters duly licensed under section 8(1) of the Sales Tax Act, 1951 for delivery outside Pakistan were not entitled to exemption from Sales Tax for the financial year 1964‑65

(2) Whether in the facts and circumstances of the case and having regard to the provisions of section 8(1) of the Sales Tax Act, 1963 and. rule 16‑A of the Sales Tax Rules the Tribunal was right in holding that exemption in respect of sales made to exporters licensed under section 8(1) of the Sales Tax Act would be available only on production of evidence of actual export outside Pakistan

(3) Whether in the facts and circumstances of the case the Tribunal was right in holding that exemption from Sales Tax is available only if the goods are exported outside Pakistan by the assessee himself and. is not available if the goods are exported outside Pakistan by a person other than the assessee

The applicant is a proprietary firm carrying on business in cloth, cotton waste and cotton yarn. It sells these goods locally and also exports them outside Pakistan. In respect of export business from the year 1963‑64 the applicant has been obtaining Exporters Licence as required by section 8(1) of the Sales Tax Act. During the financial year 1964‑65 .the applicant sold goods worth Rs.3,66,044 to four exporters, each of whom held Exporter's Licence issued by the Sales Tax Officer. As these purchasers were licensed exporters who had given certificates under ‑rule 16‑A of the Sales. Tax Rules that they were purchasing the goods for delivery outside Pakistan, the applicant did not charge sales tax from them. For the financial year 1964‑65 the applicant claimed exemption from sales tax in respect of the sales made to the aforestated purchasers. The Sales Tax .Officer refused to grant exemption on the ground that no convincing evidence was adduced that the goods sold were actually delivered outside Pakistan. He, therefore, charged sales tax subject to modification 'if the applicant produces bills of lading within two months of the order'. The applicant did not avail of this opportunity and filed an appeal before the Appellate Assistant Commissioner, which was dismissed. The Second Appeal filed before the learned Tribunal was also dismissed. The learned Tribunal while dealing with the appeal observed as follows:‑

"It may be observed at the very outset that the exemption from sales tax would be granted only on the production of reliable evidence of the fact that the intended goods were actually exported outside Pakistan. In this case the assessee failed to adduce evidence on this point, and consequently the claim was rightly rejected."

This finding of fact is final and cannot be disturbed. The questions have, therefore, to be considered in this background.

The exemption has been claimed on the basis of Notification which is reproduced as follows:

"(1) In exercise of the powers conferred by section 7 of the Sales Tax Act, 1951 (III of 1951) and in supersession of the Ministry of Finance (Revenue Division Notification No.l, dated the 1st May, 1953) the Central Government is pleased to exempt from the tax payable under the said Act, all such goods (other than ginned cotton) as are manufactured or produced in Pakistan (including raw material used in their manufacture or production), are sold for delivery, outside Pakistan and actually so delivered.

(2) Where such tax has already been paid by a person not licensed under section 9 of the said Act to a licensed manufacturer or a licensed wholesaler, or any goods to which this notification applies, the amount of tax so paid shall be refunded to such person in accordance with the provisions of the said Act and in such manner and to such extent as may be prescribed.

A perusal of this Notification makes it clear that there are three conditions necessary for claiming exemption: (i) that the goods are manufactured or produced in Pakistan, (ii) that they are sold for delivery outside Pakistan, and (iii) that they are actually so delivered. Same notification came up for consideration in Hussain Industries Ltd. v. Commissioner of Sales Tax Karachi (West) P L D 1983 Kar. 295 where relying upon Adam Ltd. v. Commissioner of Income Tax (1977) 16 Taxation 97 following observation was made:‑

"The exemption is in respect of goods and once these three conditions are satisfied the goods will be exempt from sales tax. Any one claiming exemption will have to satisfy compliance with these conditions. Importing any other condition for restricting the applicability of this notification will be doing violence to the language of the notification."

In the present case the only dispute is whether the goods were actually delivered outside Pakistan. The learned counsel for the applicant has contended that as the applicant had sold the goods to persons who were exporters to whom licence had been issued by the Sales Tax Officer and as it had obtained certificate under rule 16‑A, it should be presumed that the goods were sold for delivery outside Pakistan and were actually so delivered. This can only be a presumption, which is rebut able. Where any assessee seeks exemption from tax, the burden is upon him to establish that he has complied with the conditions thereby entitling him to claim such exemption. This burden has not been discharged by the applicant. In any event the fact that the goods were sold to exporters cannot lead to the presumption that they have been actually delivered outside Pakistan. The Notification under which exemption has been claimed in clear terms specifies that the goods should be sold 'for delivery outside Pakistan and actually so delivered'. The words 'actually so delivered' make it necessary for an assessee to establish that not only the goods were sold for delivery outside Pakistan, but they were actually delivered outside Pakistan. The entire emphasis seems to. be not merely on sale to the exporter but on delivery outside Pakistan. .

Mr. Ali Athar the learned counsel for the applicant has submitted that this is a direct reference under the amended law as it stood in the year 1971 and a statement of fact has been filed by the applicant clearly stating that 'subsequently the Sales Tax Officer has verified that the purchasers have in their returns shown that they purchase the goods without paying sales tax and exported the goods.'

Mr. Ali Athar has contended that this fact has not been controverted by any ,reply which the respondent should have filed under the procedure provided by section 17 of the Sales Tax Act. Therefore, these facts should be taken unrebutted and consequently the delivery outside Pakistan stands proved.

It may be mentioned here that before section 17 was amended by Finance Ordinance, 1971 no direct reference could be filed before the High Court. The aggrieved party had to apply to the Tribunal to refer any question of law arising out of the order and the Tribunal was to draw up a statement of the case and refer it to the High Court. Where the Tribunal refused to refer the case and no question of law arose then the aggrieved party was entitled to apply before the High Court and the High Court if satisfied that the order of Tribunal was not correct direct the Tribunal to state the case and refer it. This procedure was amended by Finance Ordinance, 1971 and a party could file 'reference directly to the High Court. Again by Finance Act 1974 the amendment of 1971 was replaced by the existing provisions. Now the party has to apply to the Tribunal to refer ariy question of law arising out of the order of Tribunal but if it refuses the aggrieved party can apply to the High Court and the High Court may if not satisfied with the correctness of the decision of Tribunal frame the question of law and proceed to hear the case.

The present case was filed under section 17 as amended in 1971. It provided that on receipt of notice of the date of hearing of the applicant, the respondent shall, at least 7 days before the date of hearing submit in writing a reply to the application; and he shall therein specifically admit or deny whether the question of law formulated by the applicant arises out of the order of the Tribunal. If the question formulated is in "the opinion of respondent defective the reply shall state in what particular the question is defective and what is the exact question of law, if any, which arise out of the said order."

Section 17 only contemplates reference on the question of law. The requirement of law was that the reference application shall be accompanied by the certified copies of the order of Appellate Tribunal, order of the Sales Tax Officer or Appellate Commissioner and any other document could be filed only if the contents of which are relevant to the question of law formulated in application and which was produced before, the Sales Tax Officer or the Appellate Assistant Commissioner. This procedure, therefore, did not admit of filing any statement of fact and if the respondent did not file any reply controvert these facts then sinless they are specifically admitted they cannot be taken to be correct and binding on the other side. What the applicant had to file was the order and documents relevant to the question of law provided such documents had been filed before the Sales Tax Officer. Under the amended procedure the applicant was not authorised to introduce new facts and new evidence, which were not produced before the Sales Tax Officer or the Appellate Assistant Commissioner. It is well settled that on question of facts the finding of the Appellate Tribunal is final unless it is challenged on the ground that it is based on no evidence at all. The contention of the learned counsel, therefore, has no force. The evidence regarding actual delivery outside Pakistan if available should have been produced by the applicant and should not have been left to the investigation of the Sales Tax Officer, to look into the records of the purchasers. If these documents were available, the applicant could have asked for their production even before the learned Tribunal, but nothing, was done. In these circumstances and for the aforestated reasons we answer questions No.l and 2 in the affirmative. In view of our answer question No.3 is redundant and we refuse to answer it.

M. B. A. Questions answered accordingly.

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